In the recent ruling of Marston (Holdings) Ltd v Mrs Perkins, the Employment Appeal Tribunal (EAT) considered if an employee had been indirectly sexually discriminated against when her employer insisted that she travel significant distances as part of her job. The EAT considered the “childcare disparity” and its application.
Indirect discrimination and the "childcare disparity"
Indirect discrimination involves a provision, criterion or practice (a PCP) of an employer which is not intended to treat employees less favourably, but which in practice has the effect of disadvantaging a group of employees with a particular protected characteristic. Where a PCP disadvantages an employee with that protected characteristic, it will amount to indirect discrimination unless the employer can objectively justify it by showing it to be a proportionate means of achieving a legitimate aim.
The concept of “judicial notice” allows a tribunal to accept widely recognised facts without requiring specific evidence. The “childcare disparity” is one such matter where tribunals should take judicial notice of the fact that women, because of their childcare responsibilities, are less likely to be able to accommodate certain working patterns than men.
Background
Mrs Perkins was employed as Head of Enforcement of Marston (Holdings) Limited (Marston) and was based in the Helmshore office in Lancashire. Following a restructure of the enforcement services division, Mrs Perkins was told that she would be required to travel to the Darlington, Epping and Birmingham offices to have face-to-face meetings, all of which involved travelling significant distances.
Mrs Perkins objected to the travel on the basis that she had primary caring responsibilities for her two children, both under five. Marston told Mrs Perkins that her travel could be limited to one day per month but, if this was not acceptable, the change would be enforced and may lead to the termination of Mrs Perkins’ employment.
Mrs Perkins remained unwilling to travel and Marston subsequently served notice to terminate her employment.
Mrs Perkins lodged a claim for indirect sex discrimination on the basis that the requirement to travel significant distances amounted to a provision, criterion or practice (PCP) which disadvantaged her as a woman, due to her childcare responsibilities. She also bought a claim for unfair dismissal. Marston’s position was that Mrs Perkins had not been put to a particular disadvantage because of the requirement to travel but, in any event, this was a proportionate means of achieving a legitimate aim (namely business efficacy and staff morale).
Tribunal decision
The tribunal found in favour of Mrs Perkins. It took judicial notice of the childcare disparity. It found that the travel requirement disproportionately disadvantaged women with childcare responsibilities. It also concluded that Marston had not demonstrated that the policy was a proportionate means of achieving a legitimate aim of business efficiency and staff morale.
Marston appealed.
Appeal decision
The Employment Appeal Tribunal (EAT) ruled that, while judicial notice can be taken of the childcare disparity as between men and women, it had been relied on too heavily by the tribunal. It was unclear whether the tribunal had properly addressed whether the travel requirement placed a group of women at a particular disadvantage. It noted that the tribunal had focused too narrowly on Mrs Perkins’ individual circumstances rather than considering the actual impact of the policy in the workplace. The childcare disparity does not automatically mean that a travel requirement disadvantages women. It also noted that the tribunal had not properly assessed whether the travel requirement was objectively justified.
The EAT therefore allowed the appeal and remitted the case for re-consideration.
Comment
This case makes clear that although tribunals can take judicial notice of the childcare disparity, it does not necessarily mean that group disadvantage is automatically proved without a proper assessment of the impact of a PCP.
This case serves as a reminder to employers to ensure new workplace policies are carefully considered. Thought should be given to how such policies may impact both groups and individuals in the workplace. An employer must be able to evidence clear justification for such policies to mitigate the risk of any claims.
Chantelle De Filippis